Commissioner of Australian Federal Police v Elzein [2017] NSWCA 142 | Case summary | Zoe

NSWNSWCA

Commissioner of Australian Federal Police v Elzein

[2017] NSWCA 142

Court of Appeal (NSW)|2017-02-24|Before: Beazley ACJ, Basten JA, Simpson JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2017-02-24

Before

Beazley ACJ, Basten JA, Simpson JA

Source

Original judgment source is linked above.

Judgment (4 paragraphs)

[1]

Background facts

The first and second respondents to the present proceedings are Ahmad Elzein and Abbas Elzein. Abbas Elzein is the sole director of Elzein's Mixed Business Pty Ltd, the third respondent.
On 28 September 2015 the Commissioner of the Australian Federal Police ("the Commissioner") applied to the Supreme Court for orders under the PoC Act. On the same day, in response to the application, a variety of orders were made including:

orders under s 18, in respect of the property of each of the three respondents;
orders under s 39, directing Abbas and Ahmad each in their personal capacities, and Abbas Elzein as director of Elzein's Mixed Business Pty Ltd, to give to the Commissioner or his nominated delegate a sworn statement setting out all of his (or its) interests in property and all of his (or its) liabilities; and
orders under s 180 for examination of Abbas and Ahmad Elzein about, inter alia, their affairs, the affairs of each other, and the affairs of Elzein's Mixed Business Pty Ltd, and about other named individuals.

The following day, 29 September 2015, Abbas and Ahmad Elzein were arrested and charged with a number of offences (relating to the unlawful importation of tobacco products) under the Customs Act 1901 (Cth) and the Criminal Code (Cth). Subsequently, some of the charges were withdrawn but others remained outstanding.
On 22 July 2016 the Commissioner served on Abbas and Ahmad Elzein examination notices requiring them to attend at specified places and on specified dates and times for the purpose of the s 180 examinations.
By amended notice of motion filed on 27 October 2016 in the Supreme Court, each respondent, invoking Uniform Civil Procedure Rules 2005 (NSW) 36.16, sought orders that the orders directing the provision of sworn statements and the orders for examination concerning the affairs of Abbas and Ahmad Elzein be set aside.
On 29 November 2016, pursuant to UCPR 28.2, Rothman J, by consent, made orders for the separate trial of five questions said to arise on the notice of motion, and ordered that the proceedings be removed into this Court.

[2]

Questions 1 and 5

Question 1 is limited to a question of statutory construction. Question 5, if one passes over the intrusion of the stray word "validly", also raises a question of statutory construction. (To the extent that the use of the word "validly" is intended to raise a question of constitutional validity, it does not appear to raise any issue additional to those raised in Question 2, and perhaps Question 3.)
It appears that the question was formulated with a view to making a contention that s 319 does not permit the exercise of the compulsory powers granted under s 39 (sworn statements) or s 180 (examination) where the person the subject of the orders has been charged with a criminal offence: see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; and Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5.
No submissions on behalf of the respondents directly related to this question. It may, therefore, be dealt with briefly.
The appellant in Zhao was the wife of Xing Jin, who was charged with offences against the Criminal Code. A restraining order under s 19 of the PoC Act was made with respect to certain property. The property included the matrimonial home of which Ms Zhao was the registered proprietor. The Commissioner applied, pursuant to s 59, for forfeiture of that property under s 49. At that time s 319 was in the following terms: "The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings."
A judge of the County Court of Victoria refused an application made on behalf of Xing Jin and Zhao for a stay of the forfeiture proceedings. The Court of Appeal of the Supreme Court of Victoria allowed an appeal and set aside the judgment and orders and ordered that the proceedings under the PoC Act be stayed until the hearing and determination of the criminal proceedings or further order: Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 187; [2014] VSCA 137.
The High Court upheld that decision. It recognised that: "Section 319 … clearly contemplates that where criminal proceedings are brought with respect to an offence related to civil proceedings for restraining orders or forfeiture orders, an application for a stay may be brought. Its terms suggest that a person charged with an offence which is relevant to forfeiture or other civil proceedings brought under the POC Act must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings." (at [30])
Nevertheless, the High Court held that the risk of prejudice to Xing Jin's criminal trial was "plain" ([42]), and "real" ([47]).
By the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth), and for the express purpose of counteracting the effect of the decision in Zhao, the Parliament amended s 319 by repealing the section as it previously existed and substituting: "Stay of proceedings (1) A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so. (2) The court must not stay the POCA proceedings on any or all of the following grounds: (a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings; (b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings; (c) on the ground that: (i) a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and (ii) the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person; (d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed. (3) Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings. (4) Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings. (5) Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings. (6) In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters: (a) that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible; (b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds; (c) the risk of a * proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed; (d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings; (e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed. Note: Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information."
The Explanatory Memorandum prepared for the purpose of putting the amending legislation contained the following: "46 The High Court handed down its decision in [Zhao] on 12 February 2015. The High Court upheld the decision to stay non-conviction based forfeiture proceedings under the POC Act until criminal charges against the respondent had been determined. The Bill seeks to clarify the operation of the POC Act following this decision. 47 The Bill inserts a new section 319 which does a number of things. 48 Firstly, new subsection 319(1) clarifies that the court may grant a stay of civil proceedings under the POC Act if the court considers that it is in the interests of justice to do so. 49 Secondly, new subsections 319(2)-(5) clarify where a court must not grant a stay. These principles are designed to clarify the intention that concurrent civil and criminal proceedings are possible, and require specific consideration of the individual circumstances and associated risks of prejudice. The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (ie. the prejudice that may result to a concurrent or subsequent criminal trial). The proposed amendments are primarily designed to ensure that the court will consider the individual circumstances of the proceedings, including the nature of the overlap between the civil and criminal proceedings, and prevent the risk that a person need only claim a risk of prejudice but not provide evidence explaining the nature of that risk." (italics added)
The Explanatory Memorandum confirms the construction I would in any event have placed on the language of the amended s 319 (see Acts Interpretation Act 1901 (Cth), s 15AB). Section 319 expressly permits an examination order and an order for the provision of a sworn statement in circumstances where the person against whom the order has been made is a defendant in concurrent criminal proceedings (Question 1). Each discloses a legislative intention to that effect (Question 5).
I would answer each of Questions 1 and 5 "Yes".
I agree with Basten JA that no constitutional invalidity has been established and accordingly would answer Question 2 "No". It follows that Questions 3 and 4 do not arise.

[3]

Endnotes

Proceeds of Crime Act, s 5.
Proceeds of Crime Act, Dictionary, proceeds of crime authority, which refers to both the Director of Public Prosecutions (Cth) and Commissioner of the Australian Federal Police.
Proceeds of Crime Act, ss 17-20A.
Proceeds of Crime Act, s 39(1)(ca).
Proceeds of Crime Act, s 180(1).
See, for example, Proceeds of Crime Act, s 49(2) and s 51.
Proceeds of Crime Act, s 180(1)(c).
[2017] NSWCA 37 at [72], referring to Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [3] (Gleeson CJ), [158] (Gummow and Hayne JJ), [219]-[221] (Kirby J) and [306] (Heydon J); North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [11] (French CJ, Kiefel and Bell JJ); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [66] (Gageler J).
See [25] above.
Each defined term is asterisked the first time it appears in a section; definitions of asterisked terms are found in the Dictionary at s 338 of the Act.
Proceeds of Crime Act, s 183(1) and (2).
Proceeds of Crime Act, s 29.
Proceeds of Crime Act, s 32(b).
Proceeds of Crime Act, s 180(2).
Proceeds of Crime Act, s 188.
Proceeds of Crime Act, s 193.
Proceeds of Crime Act, Dictionary, restraining order.
Proceeds of Crime Act, Dictionary, confiscation order.
Hammond v Commonwealth (1982) 152 CLR 188 at 202-203 (Brennan J).
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [104] (Hayne and Bell JJ).
X7 at [125] (Hayne and Bell JJ).
Proceeds of Crime Act, s 17(2)(c).
Proceeds of Crime Act, s 17(1)(d).
Proceeds of Crime Act, s 17(3)(a).
Proceeds of Crime Act, ss 41 and 42(3).
There are qualifications to the effect of a revocation in s 180E.
Proceeds of Crime Act, Dictionary, confiscation order.
See at [39] above.
Proceeds of Crime Act, s 319(6)(d) and (e).
(2015) 255 CLR 46; [2015] HCA 5.
Zhao at [1].
Zhao at [9].
For example, United Kingdom, Civil Procedure Rules, Practice Direction 23A, par 11A.
Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth (1912) 15 CLR 182 at 193; [1912] HCA 94; Eastern Extension, Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation (1923) 33 CLR 426 at 441; [1923] HCA 62.
Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth) ("2016 Amendment Act"), Sch 1.
Hansard, House of Representatives, 26 November 2015, p 13826.
Explanatory Memorandum - Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015, par 49.
Zhao at [30].
Zhao at [46].
Zhao at [44].
Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7.
Inserted by Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), Sch 14, Pt 3, item 11, commenced 27 November 2015.
Proceeds of Crime Regulations 2002 (Cth), reg 12.
Proceeds of Crime Act, s 188(3); Dictionary, responsible authority and proceeds of crime authority.
Proceeds of Crime Act, s 188(2).
Proceeds of Crime Act, s 188(3)(d).
Zhao at [42].
2016 Amendment Act, s 2, Table, item 2.
[2016] NSWCA 103 (Beazley P, Ward and Gleeson JJA agreeing).
[2017] NSWCA 5 (Meagher JA, Sackville AJA agreeing and Gleeson JA also agreeing with some further reasons).
Cacu at [18].
Cacu at [39]-[41].
Cacu at [54].
Cacu at [73].
Cacu at [87].
Supreme Court Act 1970 (NSW), s 75A(5).
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 107 (Dixon J); see also CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 and 76 at [112] (McHugh, Gummow and Callinan JJ).
Zhao at [46].
Proceeds of Crime Act, s 39(4A).
Proceeds of Crime Act, s 39A.
Proceeds of Crime Act, relevantly, s 17.
Proceeds of Crime Act, s 185(2).
Condon at [137] (Hayne, Crennan, Kiefel and Bell JJ).
(2013) 248 CLR 92; [2013] HCA 29.
X7 at [124] (emphasis in original).
(1908) 7 CLR 277 at 304.
Condon at [194].
Queensland, Legislative Assembly, Criminal Organisation Bill 2009, Explanatory Notes, p 3.
(1998) 193 CLR 173; [1998] HCA 9.
Nicholas at [74] (Gaudron J).
See also Gummow J at [145]-[146].
(1982) 152 CLR 188.
Hammond at 198 (Gibbs CJ).
Hammond at 201.
Hammond at 206.
(1989) 166 CLR 486.
X7 at [57].
X7 at [140].
(1965) 114 CLR 63.
(1970) 122 CLR 493.
X7 at [160].
X7 at [161].
X7 at [162].
(2013) 251 CLR 196; [2013] HCA 39.
Lee at [15].
X7 at [83].
X7 at [83].
Lee at [125].
Lee at [138].
Criminal Procedure Act 1986 (NSW), s 150. See also Criminal Procedure Act 2009 (Vic), s 190; Criminal Law Consolidation Act 1935 (SA), s 285C; Criminal Code (Qld), s 590A; Criminal Procedure Act 2004 (WA), s 96(3)(a); Criminal Code (Tas), s 368A.
As to which see X7 at [48].
Hamilton v Oades (1989) 166 CLR 486 at 498-499, 510, 516-517.
See, for instance, Hamilton v Oades… at 498-499.
Lee at [260].
Lee at [322].
X7 at [36].
Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 467-468; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 559.
Lee at [315].
Hamilton v Oades at 494.
Hamilton v Oades at 496, 498.
Hamilton v Oades at 498, quoting Re Gordon (1988) 18 FCR 366 at 372.
Hamilton v Oades at 499.
Set out at [114] above.
Proceeds of Crime Act, s 335.

Parties

Applicant/Plaintiff:

Commissioner of Australian Federal Police

Respondent/Defendant:

Elzein

Legislation Cited (18)

Ch III Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015(Cth)

Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016(Cth)

Independent Commission Against Corruption Amendment (Validation) Act 2015(NSW)

Criminal Organisation Act 2009(Qld)

By the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016(Cth)

Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015(Cth)

Proceeds of Crime Act 2002(Cth)ss 39(1)

Acts Interpretation Act 1901(Cth)

Criminal Procedure Act 1986(NSW)

Proceeds of Crime Regulations 2002(Cth)

Supreme Court Act 1970(NSW)

Uniform Civil Procedure Rules 2005(NSW)rr 28.2, 36.16

Customs Act 1901(Cth)

Interpretation Act 1987(NSW)

Australian Crime Commission Act 2002(Cth)

Criminal Procedure Act 2009(Vic)

Criminal Law Consolidation Act 1935(SA)

Criminal Procedure Act 2004(WA)

Cases Cited (40)

CRIME - Proceeds of Crime Act 2002 (Cth), s 319 - whether provisions prohibit court from setting aside or staying orders under s 39(1) or s 180 on ground that related criminal proceedings are pending Legislation Cited: Acts Interpretation Act 1901 (Cth), ss 15A, 15AB Constitution, s 80; Ch III Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth), Sch 14, Pt 3, item 11 Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth), Sch 1 Criminal Code (Cth), s 400.9 Criminal Procedure Act 1986 (NSW), s 173 Proceeds of Crime Act 2002 (Cth), ss 5, 17, 18, 26, 29, 32, 39, 39A, 41, 42, 45, 49, 51, 59, 73, 180, 180E, 183, 185, 186, 188, 193, 266A, 315, 319, 319A, 335, 338; Pt 2-1, Pt 2-2, Pt 3-1, Div 3, Pt 3-6, Pt 6-2 Proceeds of Crime Regulations 2002 (Cth), reg 12 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW) rr 28.2, 36.16 Cases Cited: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Commissioner of the Australian Federal Police v Cacu [2017] NSWCA 5 Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 187; [2014] VSCA 137 Texts Cited: Explanatory Memorandum - Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 at par 49

Cited By (7)

Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority

Hamzy v Commissioner of Corrective Services NSW

New South Wales Crime Commission v D154

Onley v Commissioner of the Australian Federal Police; Menon v Commissioner of the Australian Federal Police; Anquetil v Commissioner of the Australian Federal Police

Tey v State of New South Wales; Altakrity v State of New South Wales

The Commissioner of the Australian Federal Police v Bahmad

The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd

headnote [This headnote is not to be read as part of the judgment] On 28 September 2015, the Commissioner of the Australian Federal Police obtained ex parte orders with respect to the first and second respondents, Ahmad Elzein and Abbas Elzein, and the third respondent, Elzein's Mixed Business Pty Ltd. These orders related to the disclosure of property interests associated with the respondents, and required the first and second respondents to provide sworn statements under s 39(1), and to be examined under s 180, of the Proceeds of Crime Act 2002 (Cth). On 29 September 2015, the first and second respondents were arrested and charged with offences under the Customs Act 1901 (Cth), alleging illegal importation of tobacco products with intent to defraud the Commonwealth of excise tax. Subsequent to the laying of these charges, on 22 July 2016, the first and second respondents were served with "examination notices" pursuant to the orders under s 180. Each notice required the respective respondent to attend for examination at a specified time and place, and to produce documents identified in a schedule. On 27 October 2016, the respondents sought orders in the Common Law Division setting aside the ex parte orders made on 28 September 2015. On 5 December 2016, the parties obtained, by consent, orders for the determination of separate questions and the referral of the proceedings to this Court. Shortly stated, the issues for determination were: (a) Do ss 39(1) and 180 of the Proceeds of Crime Act permit orders for the examination of a person who is a defendant in pending criminal proceedings in relation to subject matter relating to the criminal charges? (b) Does s 319 of the Proceeds of Crime Act prohibit a court from staying proceedings on an examination order because criminal proceedings are pending? (c) If yes to (a) and (b), are ss 39(1), 180 and 319 invalid to that extent, on the ground that to permit such orders to be made in those circumstances would contravene Ch III of the Constitution? The Court (Beazley ACJ, Basten JA and Simpson JA) held: In relation to (a):

When considering questions of constitutional validity, the first step is to construe the statute: [26]. Lazarus v Independent Commission Against Corruption [2017] NSWCA 37, applied.
There is a clear intention that s 180 authorises an examination of a person subject to current criminal charges, with respect to matters related to the charges: [2], [54].
There is a power to make orders under s 39(1) as to written statements with respect to a person who has been charged with criminal offences and to enforce such an order against the person, once charged, if made ex parte with respect to a person not yet charged: [107]. In relation to (b):
The grounds in s 319(2) on which a court may not order a stay of proceedings are not prohibited considerations. Potential prejudice is to be taken into account, in accordance with subs (6), in circumstances where there are criminal proceedings pending against the person the subject of the proceedings under the Act. The existence of the criminal proceedings will be, in many cases, the source of some potential prejudice arising from the pursuit of proceedings under the Act, but will not be enough in itself: [59]. Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5, discussed.
The terms of the relevant provisions demonstrate that the commencement of criminal proceedings is not, of itself, a sufficient basis to stay the operation of an examination order allowing questioning in relation to the conduct the subject of the criminal charges. The provisions should be understood to operate despite the fact that criminal charges have been laid: [9], [89], [101], [162]. Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103; Commissioner of the Australian Federal Police v Cacu [2017] NSWCA 5, discussed.
Subsections 319(2)(a) and (3) prohibit a stay based solely on the ground that criminal proceedings have been instituted against the person, despite the fact that the circumstances the subject of each proceeding will be the same or substantially similar: [136]. In relation to (c):
Identifying statements in the caselaw may help in articulating principles, but the particular issue of constitutional validity in this case cannot be decided by reference to generalities: [111]. Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7; X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, discussed.
A procedural scheme which substantially interfered with the fairness of a criminal trial would be constitutionally invalid. However, the Proceeds of Crime Act does not fall into that category: [128]. The power of a court invested with criminal jurisdiction in relation to a federal offence to take steps to protect the integrity of the criminal process is constrained only by the statutory prescription that the mere fact of laying of charges is insufficient to warrant a stay. The court's powers to protect the interests of the accused are otherwise unimpaired: [133].
The impugned provisions are not constitutionally invalid because they impermissibly infringe the essential features of judicial power in the administration of criminal proceedings: [135], [164].